Professional Documents
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192ND REPORT
ON
JUNE 2005
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Justice
M. JAGANNADHA RAO
Chairman
D.O.No.6(3)/105/2005-LC(LS)
June 7, 2005
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Bhamjee series of cases in 2003 in UK, decided by the Court of Appeal have
laid down the procedure to be followed so that the statutes do not offend the
principle of access to justice contained in Art 6 of the European
Convention. In Australia and New Zealand also laws on prevention of
vexatious litigation have been enacted. (Vide High Court Rules 1952 (Rule
63.6 of High Court of Australia; the Western Australia Vexatious
Proceedings Prevention Act, 2002; the Queensland Vexatious Litigants Act,
1981, etc.) There are also provisions in this behalf in sec 88 of the New
Zealand Judicature Act, 1908.
The main purpose of enacting the law on the subject is to prevent a
person from instituting or continuing vexatious proceedings habitually and
without reasonable ground in the High Courts and subordinate courts.
After considering various laws on the subject in Commonwealth
jurisdictions as also the aforesaid Indian statutes of Madras and Maharashtra,
we have recommended in the report that if a person is instituting or
continuing vexatious proceedings habitually and without reasonable
ground, the Advocate General or the Registrar of the High Court or the
person against whom such cases are filed (with leave of the High Court) may
move the High Court (in a Division Bench) to declare the person a
vexatious litigant. Once that declaration is made, it is published in the
Gazette and communicated to all subordinate courts. Thereafter, the person
so declared as the vexatious litigant, can file civil or criminal proceedings in
the High Court or subordinate courts only (i) with the leave of the High
Court or, (ii) (if he is filing such cases in the subordinate courts) with the
leave of the District and Sessions Court. These courts will examine whether
the proceedings proposed to be instituted or being continued, have a prima
facie ground and also whether they are not an abuse of the process of court.
If the leave is refused, the proposed or pending case filed by such person will
be dismissed by the court.
If the vexatious litigant files any such case
before a court without obtaining leave as required by the Act, the case will
be dismissed and costs will have to be awarded by the court in which such
proceedings are filed. In addition, the High Court which imposed the
condition of leave, if it thinks fit, may punish the vexatious litigant for
contempt of the High Court. However, the provisions of the proposed Act
will not be applicable to proceedings taken by the vexatious litigant in
defending himself against proceedings filed by other parties.
Similarly,
proceedings under Art 226 of the Constitution of India are also excluded
from its purview. The bar against vexatious litigant for taking out criminal
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INDEX
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Chapter
Title
Introductory
II
Page Nos.
3 to 6
7 to 13
and Kerala)
III
14 to 17
IV
18 to 44
V
54
VI
55 to 72
VII
73 to 75
VIII
76 to 94
45 to
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Chapter I
INTRODUCTORY
Earlier Reports of the Law Commission
In the 189th Report of the Law Commission of India on Revision of
Court-Fee Structure (February 2004), there was a reference to frivolous and
vexatious litigation. In the Introductory Chapter and in Chapter VI of that
Report, the Commission had occasion to refer to the constant demand for
increase in court fee to prevent frivolous or vexatious litigation.
The
Commission agreed with the critical remarks of Lord Macaulay made over
one hundred and fifty years ago in connection with the preamble to the
Bengal Regulation of 1795. The preamble to the said Regulation stated that
the purpose of prescribing higher court fee in the said Regulation was
intended to drive away vexatious litigation. But Lord Macaulay who was
then heading the Law Commission of pre-independent India disagreed with
the said statement in the preamble and said that the increase in court fee, if it
was intended to drive away vexatious litigation, it would also drive away
genuine and bona fide litigation. In his minutes dated 25th June, 1835 he
described the preamble as:
the most eminently absurd preamble, that was ever drawn.
He further stated that there was frivolous and vexatious litigation long before
the system of levying court fee came into vogue and it continued after the
levy also. He posed various questions:
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..
Why did dishonest plaintiffs apply to the Courts before the institution
fee was imposed? Evidently because they thought that they had a
chance of success. Does the institution of fee diminish that chance?
Not in the smallest degree. It neither makes pleadings clearer, nor the
law plain It will no doubt drive away dishonest plaintiffs who
cannot pay the fee. But it will also drive away honest plaintiff.
The views of Lord Macaulay were accepted in the 14th Report of the
Law Commission (Chapter 22, para 6) and it was observed:
29. The argument that it is necessary to impose high court fee to
prevent frivolous litigation, already referred to has no substance.
(para 29, Ch 22)
These views were further reiterated in the 128th Report of the Law
Commission on Cost of Litigation (1988) (para 3.6).
In Chapter VII of the 189th Report, the Law Commission proposed that
a separate law be made on the lines of the Madras Vexatious Litigation
(Prevention) Act, 1949 (Act VIII of 1949) and referred to the judgment of
the Supreme Court in P.H. Mawle vs. State of A.P: AIR 1965 SC 1827 in
regard to the applicability and validity of that Act and to other cases. Under
Recommendation 10, in Chapter IX, the Law Commission recommended:
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deal with prevention of vexatious litigation are different from those dealing
with frivolous litigation. The concepts are also quite different. As will be
seen in he ensuing chapter, vexatious litigation means habitually or
persistently filing cases on the issues in which have already been decided
once or more than once or against the same parties or their successors in
interest or against different parties. But so far as frivolous litigation is
concerned, a litigation may be frivolous,- without the need for persistent
filing of similar case,- even if it has no merits whatsoever and is intended to
harass the defendant or is an abuse of the process of the Court. Further, there
are some existing provisions in the Code of Civil Procedure like Order 6
Rule 16, Order 7 Rule 1, sec 35A etc. which deal with frivolous litigation.
It is also necessary to deal with vexatious criminal proceedings which now
fall under sec 250 of the Code of Criminal procedure, 1973.
Those
Chapter II
Existing State enactments to Prevent vexatious litigation
(Madras, Maharashtra and Kerala)
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Atleast in two States, Madras and Maharashtra there are statutes made
by the State Legislatures in 1949 and 1971 respectively, to declare a person
as a vexatious litigant and prevent him from initiating action in court unless
he obtains previous permission of a specified authority. In Kerala, a Bill has
been proposed.
To declare a person as a vexatious litigant and impose restriction on
his right to access to justice requires legislation on the subject. But, a
litigation, if it is found to be vexatious, can be stayed by the court under its
inherent powers. The statements referred to above lay down the procedural
aspects in regard to exercise of inherent power of the Court to prevent abuse
of its process.
Madras Vexatious Litigation (Prevention) (Act 8 of 1949):
The above Act was designed to control vexatious litigation. It refers
to persons who habitually and without any reasonable ground, institute
vexatious proceedings, civil or criminal. Sections 2, 3, 4 and 5 of the Act,
provide for declaring a person as a vexatious litigant upon the application of
the Advocate General and once he is so declared, he cannot initiate any
action of a civil or criminal nature without prior leave of the Court. The
declaration will be published in the State Gazette. The following are the
relevant important provisions.
Section 2(1): If, on an application made by the Advocate General, the
High Court is satisfied that any person has habitually and without any
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(ii)
(2)
.. .. .
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1827). Hidayatullah J (as he then was) pointed out that such legislation were
there in England, namely statutes 16 and 17 vict Ch 30 (1896), later replaced
by sec 51 of the Supreme Court of Judicature (Constitution Act, 1925)(15 &
16 Geo Vc. 49). (These laws have since been replaced by sec 42 of the
Supreme Court Act, 1981).
In the Supreme Court, an argument that the Madras legislature had no
competency as it was not covered by any entry in List II or List III of the
Government of India Act 1935 was rejected. It was stated that the subject of
the said legislation was covered by Entry 2 of List II (Jurisdiction and
powers of all Court except the Federal Court, with respect of the matters in
this List; procedure in Rent and Revenue Courts), and entry 2 of List III
(Criminal procedure, including all matters included in the Code of Criminal
procedure at the date of passing of this Act) and Entry 4 of List II (Civil
procedure, including the law of Limitation and all matters included in the
Code of Civil Procedure at the date of passing this Act) of the VII Schedule
to the 1935 Act.
The Supreme Court, after upholding the legislative competence of the
Madras Legislature considered the validity vis--vis Art 14 and Art 19 of the
Constitution of India.
litigants were being divided into two classes and being discriminated. The
Supreme Court rejected the contention that
the litigants who are prevented from approaching the Court without
the sanction of the High Court etc. are a class by themselves. They are
described in the Act as persons who habitually and without
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before 1.11.56 and could not be extended to other geographical areas of the
new State of Andhra Pradesh unless this was done by the legislature of the
newly formed State of Andhra Pradesh.
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Sessions Judge, as the case may be, while instituting or continuing civil or
criminal proceedings.
permission for initiating or continuing the proceedings, the Court would not
take up the action on adjudication.
Kerala
So far as the State of Kerala is concerned, only the old Malabar area
was part of the former State of Madras before 1.11.56. As pointed while
discussing the applicability of the Madras Act of 1949, the said Act was
restricted in its territorial application only to the former State of Madras, here
the North Malabar part of the new State of Kerala (which was formed on
1.11.56). It was held in Advocate General vs. T.A. Rajendran: 1988(1) KLT
305 and Jose vs. Madhu: 1494(1) KLT 855 that it was not applicable to other
parts of the State of Kerala.
Therefore, the Kerala Law Reforms Committee has now recommended
a legislation on the same lines as the Madras Act of 1949 to be made
applicable to the entire State of Kerala. The Government brought forward
the Bill titled The Kerala Vexatious Litigation (Prevention) Bill, 2002. It
applies to civil, criminal or other proceedings.
Section 2 of the proposed Kerala Act permits the Advocate General to
mave the High Court to declare a person as a vexatious litigant if he is
habitually and without any reasonable ground initiating vexatious
proceedings of a civil, criminal or of other nature in any court or courts. The
person has to obtain leave of the High Court if he is initiating a proceeding
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Chapter III
Legislative competence of Parliament to enact the Vexatious Litigation
(Prevention) Law.
We have pointed out that currently there are legislations made in the
former State of Madras and in the State of Maharashtra on the subject of
Prevention of Vexatious Litigation.
State of Kerala.
The constitutional validity of the Madras Act of 1949 has been upheld
by the Supreme Court in P.H. Mawle vs. State of A.P.: AIR 1965 SC 1827.
We are of the view that there is a great need to have a law on the same
subject for being applied to the whole of India, whereby a person can be
declared by a Division Bench of the High Court as a vexatious litigant if he
has been initiating vexatious litigation. In that event the Advocate General
of the State or such other law officer to be notified by the concerned State or
Union Territory could apply to the Division Bench of the High Court to
declare the person as a vexatious litigant, have the order published in the
Gazette and inform all the subordinate courts. Thereafter, he would not be
allowed to file any civil or criminal cases or any other type of case in the
High Court, except with the leave of the High Court or the District Court, as
the case may be.
It is, therefore, proposed to recommend the bringing into force of a
comprehensive legislation on prevention of vexatious litigation applicable to
all the States and Union Territories.
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The position under the Constitution of India, after the Constitution (42nd
Amendment) Act, 1976 (w.e.f. 3.1.77) is as follows:
List III: Concurrent List
Entry 2: Criminal procedures, including all matters included in the
Code of Criminal Procedure at the commencement of the Constitution.
Entry 11A: Administration of justice; constitution and organization of
all Courts, except the Supreme Court and the High court;
Entry 13 : Civil Procedure, including all matters included in the Code
of Civil Procedure at the commencement of this Constitution,
limitation and arbitration.
Entry 46: Jurisdictions and powers of all courts, except the Supreme
Court, with respect to any of the matter in this List.
It is to be noted that under the 42nd Amendment the words in Entry 3 of List
II of VII Schedule of the Constitution Administration of justice, constitution
and organization of all courts, except the Supreme Court and the High
Courts have been transferred to Entry 11A of the Concurrent List.
On the basis of the reasoning of the Supreme Court in P.H. Mawles
case holding in favour of the legislative power of the State Legislature of
Madras under Entry 2 of List II, Entries 2 and 4 of List III of the Government
of India Act, 1935, the position under the Constitution becomes clear.
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Chapter IV
Curbs on Vexatious Litigation in United Kingdom
In England, principles based on inherent power of Court to prevent
abuse of process were coupled with legislation and rules to prevent frivolous
and vexatious litigation. We shall refer to these developments and the recent
case law on the subject wherein in some cases, after passing various restraint
orders, the Court felt compelled even to restrict the litigant from entering the
Royal Courts of Justice, under its inherent powers. The various steps which
can finally lead to such orders, if need be, have to be carefully examined
because the right to access to courts is today recognized as a basic right.
(See Ch. II of 189th Report).
1.
The Grepe vs. Loam Order (1879): Leave of Court for future
applications
The first step the Courts took under inherent powers goes back to
1879. An important principle was laid down in Grepe vs. Loam: (1879) 39
Ch. D. 168 and is still followed even now in the United Kingdom in recent
cases. The head note in the above case reads thus:
Repeated frivolous applications for the purpose of impeaching a
judgment having been made by the same parties, the Court of Appeals
made an order prohibiting any further application without leave of the
Court.
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In that case the first of the actions resulted in a judgment dated 5th
July 1879; the second action relating to the same property resulted in a
judgment dated 6th June, 1882. Notice of appeal against this judgment was
given by the infant defendants in 1883. The appeal was abandoned and by
order dated 9th April, 1884, the costs of respondents were ordered to be paid
by the next friend of appellants.
Thereafter in Nov. 1885, April 1886, June and July 1887, various
applications were made, some to the trial court and some to the appellate
court, seeking the setting aside of the judgment dated 6th June, 1882. All
were dismissed with costs.
A fresh case was started on 27th Oct. 1887 to arrest the minutes of
judgment in the second case.
recollection of a special type of order made in such cases earlier, passed the
following order which today is known as Grepe vs. Loam order:
That the said applicants or any of them be not allowed to make any
further applications in these actions or either of them to this Court or
to the Court below without leave of this Court being first obtained.
And if notice of any such applications shall be given without such
leave being obtained, the Respondents shall not be required to appear
upon such applications, and it shall be dismissed without being
heard.
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2.
Ltd.: 1977(1) WLR 510. It can stay or dismiss actions, before the
hearing, which it holds to be frivolous or vexatious: Metropolitan
Bank vs. Pooley (1885) 10 App les 210. This jurisdiction is not
diminished by Order 18 Rule 19.
3.
pleadings.
An order to strike off frivolous or vexatious pleadings can also be
passed where pleadings contain such pleas. The relevant provision in UK is
as follows:
Order 18 Rule 19 (1) The Court may, at any stage of the proceedings,
order to be struck out or amended any pleading or the endorsement of
any writ in the actions, or anything in any pleading or in the
endorsement, on the ground that
(a)
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(b)
(c)
(d)
New Civil Procedure Rule 24.2 provides that the Court may give
summary judgment in favour of the defendant if it considers that the
claimant has no real prospect of succeeding in the claim.
There is considerable case law in UK under this Rule but we shall
refer to a few of them relevant for the subject of frivolous and vexatious
actions.
The expression frivolous or vexatious means cases which are
obviously frivolous or vexatious (Att. Gen of Duchy of Lancaster vs. L &
N W Rly (1892)3 Ch 274 (277). The expression includes proceedings which
are an abuse of the process: Ashmore vs. British Local Corp: (1990)(2) All
ER 981 (CA).
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respects. In particular, by the 1985 Amendment, the Court can now pass a
civil proceedings order or a criminal proceedings order or all
proceedings order, as the case may be, and no appeal would be allowed
from an order refusing leave. But, the Courts have said that the order under
sec. 42 is the last of the various other options open to the Court before such
an order is passed.
Section 42 (as amended by sec 24 of Prosecution of Offences Act,
1985), reads as follows:
Section 42: If, on an application made by the Attorney General under
this section, the High Court is satisfied that any person has habitually
and persistently and without reasonable ground
(a)
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(b)
(c)
the Court may, after hearing that person or giving him an opportunity of
being heard, make a civil proceedings order, a criminal proceedings order or
an all proceedings order.
(1A) In the section, civil proceedings order means an order that
(a)
(b)
(c)
no application (other than the one for leave under this suitor) shall
be made by him, in any civil proceedings instituted in any court by
any person without leave of the High Court;
(a)
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(b)
all proceedings order means an order which has the combined effect of the
two other orders.
(2)
An order under sub section (1) may provide that it shall cease to have
effect at the end of a specified period, but shall otherwise remain in
force indefinitely.
(3)
(3A) Leave for the laying of an information or for an application for leave
to prefer a bill of indictment by a person who is the subject of an order
for the time being in force under subsection (1), shall not be given
unless the High Court is satisfied that the institution of the prosecution
is not an abuse of the criminal process and that there are reasonable
grounds for the institution of the prosecution by the applicant.
(4)
No appeal shall lie from a decision of the High Court refusing leave
required by virtue of this section.
(5)
A copy of any order under sub section (1) shall be published in the
London Gazette.
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The vexatious litigation order .. did not limit the applicants access
to court completely, but provided for a review of a senior Judge . of
any case the applicant wished to bring. The Commission considers
that such a review is not such as to deny the essence of the right of
access to court, indeed some form of regulation of a access to court is
necessary in the interests of the proper administration of justice and
must therefore, be regarded as a legitimate aim.
Three Human Rights cases Ebert, Mathews and Bhamjee
Chadwick and Buxton JJ in Ebert vs. Official Receiver 2001(3) ALL ER 942
(CA) decided a typical case in the Court of Appeal. They said, adverting to
the decisions of the European Court and the provisions requiring leave of
court in sec 42 of the 1981 Act, as follows:
The detailed and elaborate procedures operated under section 42 of
the 1981 Act respect the important ECHR values that procedures
relating to the assertion of rights should be under judicial rather than
administrative control; that an order inhibiting a citizens freedom
should not be made without detailed inquiry; that the citizen should be
able to revisit the issue in the context of new facts and of new
complaints that he wishes to make; and that each step should be the
subject of a separate judicial decision. The procedures also respect
proportionality in the general access to public resources, in that they
seek to prevent the monopolization of court services by a few litigants;
our aim, and the national arrangements to implement it, that the
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(i)
that the limitations applied do not restrict or reduce the access left
to the individual in such a way or to such an extent that the very
essence of the right is impaired;
(ii)
It was pointed out that H vs. UK (1985) 45 D&R 281 of the European
Commission (already referred) upheld an order under the Vexatious Actions
(Scotland) Act, 1898 restraining a vexatious litigant from bringing an action
pursuant to an earlier order under the said Act.
Lord Phillips summarized the position under the following headings:
(i) Protective measures Strasbourg Jurisprudence; (ii) Protective measures,
Grepe vs. Loam; (iii) An extended Grepe vs. Loam order as passed by
Neuberger J approved by the Court of Appeal in Ebert vs. Vervil 1999(3)
WLR 670; (iv) Protective measures under sec 42; (v) Exceptional orders in
Att Gen vs. Ebert 2002(2) All ER 789; (vi) restraining the litigant from
entering the Royal Courts or from interfering with the Court or its staff, and
(vii) only paper procedure (i.e. no oral hearing) as in Taylor Landrena (2000)
QB 528.
An extended Grepe vs. Loam order (extended civil restraint order) is
one as passed in Ebert vs. Venvil, where the Court of Appeal restrained all
such activity by the person before the Court of Appeal, or in any Division of
the High Court or in any county Court. A High Court may make a similar
order in respect of any Division of the High Court or County Court. At the
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(ii)
(iii)
(iv)
(v)
Human Rights and restricting an existing right of appeal (ECHR and UK):
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However, it would
violate that Article, read in conjunction with Art 14, were it to debar
certain persons from these remedies without a legitimate reason while
making them available to others in respect of the same type of
actions.
Lord Phillips said that where a litigant can be shown to have
persistently abused the processes of the court by making applications and
instituting proceedings which have been adjudged to be totally devoid of
merit, despite earlier restraints, this is a legitimate reason why the time
should come when he is limited to one chance of showing that the new
action he wishes to bring, or the new application he wishes to make, is not
totally devoid of merit. If it arguably has merit, then of course, it should be
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permitted to proceed in the usual way. Such a procedure of giving only one
chance and not allowing a second chance in appeal is valid. In Ebert vs.
Official Receiver 2001 EWCA (civ) 340: 2002(1) LR 320 (CA) the court
held that the equivalent statutory procedure in sec 42(4) of the 1981 Act was
convention compliant. Compare the approval of the European Commission
on Human Rights in H vs. K (1985) 45 D&R 281, which Buxton LJ cites in
para 8 of the judgment in Ebert vs. Official Receiver.
Lord Phillips then referred to the situations in which an appeal could
be foreclosed by judicial order (under section 42(4) refusing leave to appeal)
He said:
If a litigant subject to an extended civil restraint order or a general
civil restraint order, continues to make the requisite applications
pursuant to that order which are customarily dismissed on the grounds
that they are totally devoid of merit, a Judge may, if he thinks fit,
direct that if any further application is dismissed on the same grounds,
the decision will be final. Thereafter the appeal court will have no
jurisdiction to grant permission to appeal against any subsequent
refusal of permission
Such restrictions will be Strasbourg compliant, Lord Phillips held.
(i)
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We shall now refer to the Ebert series of cases leading to the applicant
being banned from entry into Royal Courts for three years.
The cases
vexatious, the Court initially passed a Grepe vs. Loam order asking him to
obtain leave before filing a new action. These orders were upheld by the
Court of Appeal on 30th March 1999 (see Ebert vs. Venvil: 1999(3) WLR
670 (Lord Woolf, Otton & Aldous JJ. Fresh applications for leave were
refused by Neuberger J and they were rejected on 26.8.99 (Ebert vs. Midland
Bank PLC: 1999 EWCA (civ) 2108.
(ii)
It was at that stage that the Attorney General applied and the Court felt
General vs. Ebert 2000 EWHC Adnil 286 (7th July, 2000) passed orders
under sec 42 of the Supreme Court Act, declaring Mr. Ebert as a vexatious
litigant. A long series of vexatious cases initiated by Mr. Elbert were listed
out and an order was passed declaring him as a vexatious litigant and
requiring him to obtain prior leave for all future actions.
(The oral
arguments which are also reported show how vexatious Mr. Ebert was).
(iii)
(15.2.2001), two applications for leave to file appeal were rejected. The
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Court observed that the patience with which Neuberger J dealt with a series
of applications of Elbert was fair and open-minded. The Court of Appeal
heard and refused leave.
(iv)
Yet another application for leave to appeal was rejected by the Court
of Appeal in Ebert vs. Official Receiver: (2001) EWCA (Liv) 305 (20th Feb.
2001).
(v)
The human rights angle was gone into in Ebert vs. Official Receiver:
2001 EWCA (Liv) 340 and it was held that sec 42 of the Supreme Court Act,
1981 did not violate the right to access to courts and fair trial under Art 6 of
the Human Rights Convention.
(vi)
in Attorney General vs. Ebert: 2002(2) All ER 789, by Brooke and Harrison
JJ under inherent powers restraining Ebert from entering the Royal Courts of
Justice without permission. It was directed as follows:
The Courts supervising role extended beyond the mere regulation of
litigation and of litigants who had submitted themselves to the
compulsory jurisdiction of the Court, and included the regulation of
the manner in which the Court process could, in general, be utilized.
. in the exercise of inherent jurisdiction, the court had the power to
retrain litigants from wasting the time of court staff and disturbing the
orderly conduct of Court processes in a completely obsessive pursuit
of their own litigation, taking it forward by one unmeritorious
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Act, 1981 and was allowed as Mr. Ebert had started vexatious prosecutions
too.
duration.
(ii)
Bhamjee series:
(14th May 2003) were dealing with nine applications by Mr. Bhamjee
including the one for permission to appeal for an extension of time within
which to appeal against an order made by Park J on 27th Jan 2003 in relation
to these cases filed by Mr. Bhamjee. The history of Bhamjee litigation
which started in Dec 99 was referred to. The dispute was with regard to
orders of the planning department refusing permission to allow him to use
his rear yard for car-washing; against the insurance company, Secretary of
State, five barristers, etc.
The court referred to statistics of increase in cases relating to
vexatious litigation coming before the courts filed with court fee exemption,
as follows (para 23)
Mr. Bhamjee is not alone in making persistent applications to this
court with the benefit of court fee exemptions. The court has been
handed a report by the Civil Appeals Office which identifies the
litigants in person by a letter. A litigant I will call A has made 23
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The Court of
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I would order stay on all his current applications to this Court and
any applications he may lodge in future with the court until that
further hearing takes place.
While dismissing the three applications filed by Bhamjee for leave and
directing as above, the learned Judges Brooke and Carnworth directed that
the case be further referred to three Judges for deciding whether any other
sort of injunction should be issued to control Mr. Bhamjees future
activities.
(ii)
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Shipping Corpn. 1891 AC 909, Taylor vs. Lawrence 2002(3) WLR 640), the
Court referred to the statement of Brooke J in AB and others vs. John Wyeth
& Brother Ltd. 1997(8) Med L.R 57 to the effect that the identification of the
classes of vexatious litigation is never closed. He referred to Taylor vs.
Lawrence 2003 QB 528 wherein it was held that it was open to the court,
under its inherent power, to re-open an earlier decision of the Court. The
Court of Appeal advocated to the step by step proceedings in paras 38, 3940, 41-42, 43-47. 48-51 and these were summarized again in para 53.
These final guidelines can be briefly stated as follows:
(a)
initially, an order could be passed under CRP 3.3 striking out the
action or applications, on the Courts own initiative, if it appears to
be totally devoid of merit.
(b)
(c)
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(e)
(f)
The other party may indeed apply for the passing of any such
orders as stated above.
(g)
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After laying down the above guidelines, the Court of Appeal referred
to the plea of the five Barristers. The Court held that the application of Mr.
Bhamjee for action against the lawyers for allegedly misleading the Court
was totally devoid of merit. The Court heard the counsel appearing for the
Barristers and Mr. Bhamjee. It was shocking that Mr. Bhamjee, instead of
trying to sustain his plea against the five Barristers, threatened to file cases
against the counsel who were appearing for these Barristers. The Court thus
said it was a fit case for an extended civil restraint order. It gave seven
directions:
(1)
(2)
(3)
(4)
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(5)
(6)
advance.
(7)
(8)
(9)
Alexander case:
HM Attorney General vs. Anthony Alexander: 2003 EWHC (Admn)
3076.
This was an application filed under sec 42 of the Supreme Court Act,
1981by the Attorney General after Mr. Alexander went on filing repeated
applications on the same subject without end even after Grepe vs. Loam
orders were passed. In para 42, Maurice Kay Mackay JJ observed:
It comes as no-surprise, against all this, to be told by Mr. Alexander,
as we have been today, that he has attended over 750 hearings in this
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building and has appeared before 50 High Court Judges and 29 Lord
Justices on Appeal.
Brooke LJ had described that Mr. Alexander was a menace.. to the proper
administration of Justice.
The Court of Appeal then passed an order under sec 42 without
limitation of time.
(4)
John Pepin case: In H.M. Attorney General vs. John Pepin: 2004
EWHC 1246 (Admn) the learned Judges, after referring to the innumerable
cases filed by Mr. Pepin held that only one specified case against Mr. P.C.
Walls was to be continued but that all the other options referred to in
Bhamjees case are otherwise not suitable at this stage and the only order
should be a civil proceedings order, under sec 42(1A) (a), (b) and (c) without
limit of time; and the grant of permission to continue the particular
proceeding against Mr. P.C. Walls is conditional on a senior counsel
certifying and agreeing to argue the case. In respect of all others, his remedy
is to seek permission under sec 42.
Conclusion: The above case law and statute of 1981 in UK (as amended in
1985) shows the care with which even vexatious litigants are dealt with after
the Courts were required to apply Art 6 of the European Convention.
Various steps have to be taken in UK as stated by Lord Phillips in Bhamjees
case and it is only, as a last resort that section 42 orders can be passed.
These cases are certainly good guidance before any order could be passed
under the legislation proposed in this Report.
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Chapter V
Curbs on vexatious litigation USA
We have selected statutes of a few States in USA, which are intended
to prevent vexatious litigation, with a view to understand the general nature
of such statutes in different States in USA.
In USA, there are provisions made requiring surety, or requiring prior
leave of Court, or for taking action for contempt of Court, if action is filed
disobeying the earlier orders requiring leave.
The statutes also provide for grant of stay pending the furnishing
security or the decision on the question whether a person is to be declared a
vexatious litigant.
The statutes also require that at least five cases on the subject must
have been lost by the litigant in the preceding seven years.
California
In the State of California, provisions of sec 39 of the Code of Civil
Procedure refer to vexatious litigation.
Section 391(a) defines litigation as civil litigation commenced in a
State or federal Court. Clause (b) defines vexatious litigant as follows:
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In
the
immediately
preceding
seven-year
period,
has
unmeritorious
motions,
pleadings,
or other
papers, conducts
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a pre-filing order which prohibits the vexatious litigant from filing any new
litigation in the Court of the State in propria persone without first obtaining
leave of the presiding Judges of the Court where the litigation is proposed to
be filed. Disobedience of the order by a vexatious litigant may be punished
as a contempt of court.
Section 391.7(b) states that the presiding Judge shall permit the filing
of that litigation only if it appears that the litigation has merit and has not
been filed for the purposes of harassment or delay. The presiding Judge may
condition the filing of the litigation upon the furnishing of securities for the
benefit of the defendants as provided in sec 391.3.
Section 391.7 states that the clerk may not file any litigation
presented by a vexatious litigant subject to a pre-filing order, unless the
vexatious litigant first obtains an order from the presiding Judge permitting
the filing. If the clerk mistakenly files the litigation without the order, any
party mayfile with the clerk and serve on the plaintiff and other parties, a
notice stating that the plaintiff is a vexatious litigant subject to a pre-filing
order set forth in sub clause (a). The filing of the notice shall automatically
stay the litigation. The litigation shall be automatically dismissed unless the
plaintiff, within 10 days of the filing of that notice, obtains an order from the
presiding Judge permitting the filing of the litigation as set forth in sub
clause (b). If the presiding Judge issues an order permitting the filing, the
stay of the litigation shall remain in effect, and the defendants need not
plead, until 10 days after the defendants are served with a copy of the order.
Section 371.7(d) states that for the purposes of this section,
litigation includes any petition, application, or motion other than a
discovery motion, in a proceeding under the Family Code or Probate Code,
for any order.
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Section 371.7(e) states that the clerk of the Court shall provide the
Judicial Council, a copy of any pre-filing orders issued pursuant to sub
division (a). The Judicial Council shall maintain a record of vexatious
litigants subject to those pre-filing orders and shall annually disseminate a
list of those persons to the clerks of the Courts of this State.
Texas
The Civil Practice and Remedies Code, deals with vexatious litigant
in Chapter 11.
Section 11.001(1) defines defendant, clause (2) defines litigation;
clause (3) defines Local Administrative Judge; Clause (4) defines moving
defendant; clause (5) defines plaintiff.
Section 11.051 refers to Motion for determining plaintiff a vexatious
litigant and requesting security. It states that in a litigation in the State, the
defendant may, on or before the 90th day after the date the defendant files the
original answer or makes a special appearance, move the Court for an order:
(1)
(2)
if the motion is denied, before the 10th day after the date it
is denied; or
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(2)
if the motion is granted, before the 10th day after the date
the moving defendant receives notice that the plaintiff has
furnished the required security.
date the defendant makes the motion under sec. 11.051, has
commenced, prosecuted, or maintained in propria persona, at least five
litigations other than in a small claims court that have been
(A)
(B)
(C)
(2)
After a litigation has been finally determined against the plaintiff, the
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(A)
(B)
(3)
(2)
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to contempt of Court
Section 11.102 mentions when permission may be granted by the Judge. It
states:
Section 11.102: Permission by Local Administrative Judge
(a) A local Administrative Judge may grant permission to a person
found to be a vexatious litigant under sec 11.101 to file a litigation
only if it appears to the Judge that the litigation;
(1)
has merit; or
(2)
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declared a vexatious litigant and has been required to obtain prior permission
from a Judge before filing a fresh action, disobeys it and files a case without
such permission, he can be punished for contempt of Court. Though the
order declaring a person a vexatious litigant is circulated to other Courts, it
is possible that by mistake or oversight, the court staff registers a fresh case
filed by him without his obtaining prior permission, the said mistake can be
rectified and the plaintiff be required to obtain permission, staying the
matter. The US statutes also provide recognition of an order passed by Court
in another State, declaring a person as a vexatious litigant. These are the
special features of the laws relating to vexatious litigation in the States in
USA.
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Chapter VI
Curbs on Vexatious Litigation in Australia and New Zealand
In this Chapter, we shall refer to the efforts made in Australia and New
Zealand to prevent vexatious litigation.
Australia
In Australia, the High Court Rules of 1952 have a provision in Rule
63.6 to the following effect:
Rule 63.6: Vexatious proceedings:
(1)
(2)
Leave shall not be given under this rule unless the Court or a
Justice is satisfied that the proceedings are not an abuse of the
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process of the Court and that there is prima facie ground for the
proceedings.
Western Australia
In Western Australia, they have the Vexatious Proceedings
Restriction Act, 2002. It contains 13 sections and a Schedule.
Section 3 defines Court as meaning the Supreme Court or a Judge of
the State Supreme Court, the District Court, or a District Judge.
Section 3 also defines the words institute proceedings as including:
(a)
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(b)
(d)
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person
has
instituted
or
conducted
vexatious
the Court may make either or both of the following orders (c)
(d)
(2)
(b)
(c)
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(a)
(b)
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We have seen that in USA, in some State statutes, on such situations where a
vexatious litigant files a case without seeking leave, he can be punished for
contempt of Court. But here, costs can be imposed.
Section 6 deals with leave to institute proceedings. It reads thus:
Section 6:
(1) An application for leave to institute proceedings, or
proceedings of a particular class (in this section called the
proceedings), that is requested by an order under section 4
(1)(d) is to be made
(a) in the case of proceedings in the Supreme Court, to the
Supreme Court or a Judge;
(b) in the case of proceedings in the District Court, to the
District Court or a District Court Judge;
(c) in the case of proceedings before a local Co8rt, to a
local Court Judge; or
(d) in the case of proceedings in a Court of summary
jurisdiction, to a Magistrate; or
(e) in the case of proceedings before a tribunal, to the
tribunal,
and is to be accompanied by an affidavit in support of the
application.
(2) The Court or tribunal to which the application for leave is
made may dismiss the application even if the applicant does
not appear at a hearing of the application.
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(iii)
(iv)
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(1)
General under this section, the High Court is satisfied that any person
has persistently and without any reasonable ground instituted
vexatious legal proceedings, whether in the High Court or in any
inferior Court, and whether against the same person or against
different persons, the Court may, after hearing that person or giving
him an opportunity of being heard, order that no civil proceeding or no
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Court or Judge thinks fit and shall not be granted unless the Court or
Judge is satisfied that the proceeding is not an abuse of the process of
the Court and that there is prima facie ground for the proceeding.
(3)
We may also refer to sec 477 of the High Court Rules (Part 5) relating
to stay or dismissal. That section reads:
Section 477: Summary stay or dismissal:
When in any proceeding, it appears to the Court that in relation to the
proceeding generally or in relation to any claim for relief in the proceeding
(a)
(b)
(c)
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Chapter VII
Curbs on Vexatious Litigation in Canada
In Canada there are specific statutory provisions in the Federal system
which deal with prevention of vexatious proceedings.
Section 40 of the Federal Courts Act (R.S. 1985, (F-7) reads as
follows:
Section 40:
(1)
An application under sub section (1) may be made only with the
section (1) may apply to the Court for rescission of the order or for
leave to institute or continue a proceeding.
(4)
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A decision of the Court under sub section (4) is final and is not
subject to appeal.
In addition, in the Codes of Procedure, there are provisions similar to Order
7 Rule 11 of the Indian Code of Civil Procedure. For example, in British
Columbia, Rule 19(24)(9) of the British Columbia Rules of Court permit the
Court to strike off or direct amendment of the whole or any part of an
endorsement, pleading, petition or other document in certain circumstances.
It reads as follows:
Rule 19(24): At any stage of a proceeding, the Court may order to be
struck out or amended the whole or any part of an endorsement,
pleading, petition or other document on the ground that
(a)
(b)
(c)
(d)
Procedure, (O.Reg.
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(b)
(a)
In Carey Canada Inc vs. George Earnest Hunt 1990(2) SCR 959, the
Canadian Supreme Court referred to the rulings under the English law
in regard to striking out frivolous and vexatious pleadings or where no
cause of action is shown. Wilson J observed that:
the Court has a right to stop an action at this stage if it is
wantonly brought without a shadow of an excuse, so that to
permit the action to go through its ordinary stages upto trial
would be to allow the defendant to be vexed under the form of
legal process where there could not, at any stage, be any doubt
that the action was baseless.
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Chapter VIII
Recommendations for Preventing Vexatious Litigation in India
We have already referred in Chapter II, to the existing laws on
prevention of vexatious litigation in the former State of Madras and in the
State of Maharashtra, namely, the Madras Vexatious Litigation (Prevention)
Act (Act 8 of 1949) and the Maharashtra Vexatious Litigation (Prevention)
Act (Act XLVIII of 1971).
amended vide Tamil Nadu Adaptation of Laws Order, 1969 and now known
as Vexatious Litigation (Prevention) Act, 1949 (TN Act 8 of 1949). In other
chapters, we have referred to the statutory position and case law in other
countries. In the 189th Report on Revision of Court Fee Structure, the Law
Commission recommended (Recommendation No.10) for enacting a Central
legislation on the subject.
necessary in that Act. We shall now refer to particular aspects of the various
legislations and formulate our recommendations.
(1)
does not apply to seeking leave for continuation of pending proceedings, the
Maharashtra Act requires leave to be obtained to continue pending
proceedings also, in case a person is declared a vexatious litigant during the
pendency of such proceedings.
prescribe the need for leave for continuing pending proceedings. This being
the current position, we are of the view that once a person is declared to be a
vexatious litigant, the proposed law should require leave not only to initiate
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as a vexatious litigant, both Acts use the words habitually and without
reasonable ground instituted vexatious proceedings.
word persistent, which word is used in sec. 42 of the UK Act of 1981 and
in other countries.
In UK (see Chapter IV), sec. 42 of the Supreme Court Act, 1981 (as
amended by sec. 24 of the Prosecution of Offences Act, 1985) uses the
words habitually and persistently and without reasonable ground.
This is one aspect to be considered.
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(b)
(c)
(d)
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words habitually and persistently convey more or less the same meaning.
In the very case in P.H. Mawle (AIR 1965 SC 1827), decided with reference
to the Madras Act of 1949, the Supreme Court observed (para 7):
The Act, which was passed by the Madras Provincial Legislature in
1949 conferred jurisdiction upon the Madras High Court to deal with
cases of habitual litigants who were persistently filing vexatious
actions and were guilty of an abuse of the process of Court
Further, in Vijay Narain Singh v. State of Bihar: 1984 (3) SCC 14,
dealing with sec. 2(d)(iv) of Bihar Control of Crimes Act, 1981, the majority
held that the word habitually also means persistently.
observed:
The Court
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It
In the said
Lexicon, the meanings of the words habit and habitual are stated as
follows:
Habit:
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The words
which have been used in the Madras and Maharashtra Acts, namely,
habitually and without reasonable cause are sufficient.
(4)
In the Maharashtra Act, it also uses the words habitually and without
The
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Madras Act of 1949 does not use the words, whether against the same
person or different person.
In our view, it will be more appropriate to use these words also, i.e.
whether against the same person or different person.
(5)
person as a vexatious litigant, the Madras and Maharashtra Acts permit the
Advocate General to file the application in the High Court.
In England, under sec. 42 of the Supreme Court Act, 1981, the
application is to be filed by the Attorney General.
In Australia, as per the High Court Rules, 1952, the application can be
filed by a Law Officer, or the Australian Government Solicitor or the
Principal Registrar of the Court.
In Western Australia, sec. 4(2) of the Vexatious Proceedings
Prevention Act, 2002 provides that an application can be filed by (a) the
Attorney General, (b) Principal Registrar of the Supreme Court or the
Principal Registrar of the District Court, or (c) with leave of Court by a
person against whom another person has instituted or conducted vexatious
proceedings, or (ii) a person who has a sufficient interest in the matter.
In New Zealand, under sec. 88A of the Judicature Act, 1908, the
application has to be filed by the Attorney General.
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(6)
Next question is as to what type of orders the High Court should pass
in the applications.
hearing the parties referred to above, no doubt decide whether the opposite
party is a vexatious litigant.
(b)
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(b)
(c)
(7)
granted or refused.
jurisdictions.
In the Madras Act, 1949, it is stated in sec. 3 that leave shall not be
given in respect of any proceeding which may be filed by the vexatious
litigant unless the Court before which the leave application is filed finds a
prima facie ground for such proceedings.
The Maharashtra Act, 1971 refers to two conditions.
that leave shall not be given unless the Court is satisfied that the proceedings
are (a) not an abuse of the process of the Court, and (b) there is prima facie
ground for the proceedings.
Sec. 42(3) of the UK Supreme Court Act, 1981 uses the words unless
the High Court is satisfied that the proceedings or applications are not an
abuse of the Court in question and that there are reasonable grounds for the
proceedings or application.
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In Canada, in the 1985 Act, sec. 40(4) also refers to the proceedings
not being an abuse of process of Court and there being reasonable grounds
for the proceedings.
On a consideration of the above statutes, we prefer the words in the
Maharashtra Statute of 1971 which says that leave shall not be granted
unless the Court is satisfied that the proceeding is not an abuse of process of
Court and there are also reasonable grounds for the proceedings.
(The
Madras Act, 1949 does not refer to the other condition that the proceeding
should not be an abuse of process of Court).
(8)
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(9)
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the Court in which the person has instituted a case or is continuing a case
without leave.
vexatious litigant and which imposed the condition that he should obtain
prior leave, must take action for contempt of Court for violation of its order.
Of course, it must be made clear that no leave is required for filing an
application for leave.
(10) As to the right of appeal against an order declaring a person as a
vexatious litigant and directing him not to initiate/continue proceedings
without leave, inasmuch as we are recommending that such orders shall be
passed only by a Division Bench of the High Court, it is not necessary to
provide for any further right of appeal.
whenever the Division Bench of the High Court passes such an order as
stated above, a copy of the order must be communicated to all the
subordinate Courts within its supervisory jurisdiction.
In addition to a
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Gazette notification, it may also be permissible for the High Court to give
directions for publication of its order in any other manner it deems fit.
(12) As to extension of period of limitation, the Madras and Maharashtra
Acts make no special provision. If the High Court restrains a person from
initiating a proceeding, and the person has to apply for leave before the
appropriate Court as stated above, there may be cases where the suit may, in
some cases, get barred by limitation by the time leave is granted.
Question is whether any special exemption or extension of time is
necessary.
Sec. 15(1) of the Indian Limitation Act, 1963 provides that in
computing the period of limitation for any suit or application for the
execution of a decree, the institution or execution of which has been stayed
by injunction or order, the time of the continuance of the injunction or order,
the day on which it was issued or made, and the day on which it was
withdrawn, shall be excluded.
Likewise, under sec. 470(2) of the Code of Criminal Procedure, 1973,
it is stated that where the institution of the prosecution in respect of an
offence has been stayed by an injunction or order, then, in computing the
period of limitation, the period of the continuance of the injunction or order,
the day on which it was issued or made and the day on which it was
withdrawn, shall be excluded.
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Annexure I
The Vexatious Litigation (Prevention) Bill, 2005
A
BILL
to prevent the institution or continuance of vexatious proceedings,
civil and criminal, in the High Courts and Courts subordinate thereto.
Whereas, it is expedient to prevent the institution or continuance of
vexatious proceedings, civil and criminal, in the High Courts and in the
courts subordinate to the High Courts;
BE it enacted in the Fifty-Sixth Year of the Republic of India as follows:1.
(1)
(2)
(3)
It shall come into force on such date as the Central Government may,
by notification in the Official Gazette specify.
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2.
(1)
vexatious litigant, may be filed (a) by the Advocate General or in absence of office of Advocate
General, by a Senior Advocate nominated by the High Court in
this behalf; or
(b) by the Registrar General of the High Court; or
(c) with the leave of the High Court, by a person against whom
another person has instituted or conducted proceedings, civil or
criminal.
(2)
(3)
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(4)
3.
(1) Subject to the provisions of subsection (2), when the High Court under
subsection (2) of section 2 or under subsection (2) of section 6 declares a
person as a vexatious litigant, it shall also order that (a) no proceeding, civil or criminal, shall be instituted by the said person
in the High Court or any other court subordinate to that High Court;
and
(b) no proceeding, civil or criminal, if already instituted by the said person
in the High Court or any other court subordinate to that High Court,
shall be continued by him,
without obtaining leave of the appropriate Court or Judge referred to in
subsection (3).
(2)
(b)
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(c)
(3)
(b)
(4) Leave shall not be granted unless the appropriate Court or the appropriate
Judge, as the case may be, is satisfied that the proceedings are not an
abuse of the process of the Court and that there is prima facie ground in
the proceedings proposed to be instituted or continued by the person
declared as a vexatious litigant.
Explanation: In this section and section 5, (a) institution or continuation of civil or criminal proceedings does not
include proceedings instituted or continued under Article 226 of the
Constitution of India.
(b) institution or continuation of criminal proceedings means the
commencement or institution or continuation of a proceeding seeking
prosecution by filing a complaint before a Criminal Court.
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4.
(1)
A copy of every order made, under subsection (2) of section 2, declaring any person as a vexatious
litigant,
shall be published in the Official Gazette and may also be published in
such other manner as the High Court may direct.
(2) Every order referred in subsection (1) shall also be communicated to all
the courts subordinate to the High Court which passed such order.
5.
(1)
(2)
The court while dismissing the proceedings under subsection (1) shall,
in addition, further direct such vexatious litigant to pay costs.
(3)
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liable for punishment for contempt of the High Court which had
passed the order under subsection (1) of section 3.
6.
(1)
(2)
(3)
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7.
8.
Saving:
The provisions of this Act shall be in addition to and not in derogation
of the provisions of any other law providing for striking out vexatious
pleadings or prevention of abuse of process of law, or which require
consent, sanction or approval in any form of any other authority for
the institution or continuance of any civil or criminal proceeding.